The Bankers Warehouse Co.

National Labor Relations Board - Board Decisions

Apr 30, 1964

146 N.L.R.B. 1197 (N.L.R.B. 1964)

THE IBAN•KERS' WAREHOUSE 'COMPANY 1197
awarded to the Building Service electricians. Such factors as the
Employer's assignment which conforms with its past practice with
regard to similar work, the fact that the maintenance electricians have
sufficient skill and experience to do the work, and the consequent
economy and efficiency of operation, demonstrate the superior claim
of the employees represented 'by the BSEIU to the disputed work.
We shall, 'accordingly, determine the jurisdictional dispute by decid-
ing that the Employer's maintenance electricians are entitled to con-
tinue performing the work in dispute. Our present determination is
limited to the particular controversy which gave rise to this proceed-
ing. In making this determination, we are awarding the disputed
work to the employees of the Employer who are represented by
BSEIU, but"not to that Union or its'members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record in
the case, the Board makes the following Determination of Dispute
pursuant to Section 10 (k) of the Act: .
1. Employees engaged in installing primary switch gear currently
represented by Local 79, Building Service Employees' International
Union, AFL-CIO, are entitled to continue this project in the Guardian
Building.
2. Local 58, International Brotherhood of Electrical Workers, AFL-
CIO,. is not and has not been lawfully entitled to force or require
Guardian Building Company to assign IBEW members the work of
installing primary switch gear.,
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local 58, International Brotherhood of Electrical Work-
ers, AFL-CIO, shall notify the Regional Director for the Seventh
Region, in writing, whether or not it will refrain from forcing or re-
quiring Guardian Building Company by means proscribed by Sec-
tion 8(b) (4) (D) to assign the work in dispute to its members rather
than to the employees of Guardian Building represented by BSEIU.
The Bankers Warehouse Company and International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Local Union No . 17. Case No. 27-CA-1388. April 30,
1964
DECISION AND ORDER
On October 18, 1963, Trial Examiner James R. Hemingway issued
his Decision in the above-entitled proceeding, finding that the Re-
146 NLRB No. 135.
1198 DECISIONS, OF NATIONAL LABOR- RELATIONS BOARD
spondent had not engaged in unfair " labor practices ,as alleged and;
recommending dismissal of the complaint, as, set forth in the. attached
Trial Examiner's Decision. . Thereafter, the. General Counsel. filed,
exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b). of the Act, the. Board,
has delegated its powers in connection with this case. to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown]. -
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's Decision, the excep-
tions, and the briefs, and. as noted hereafter, finds merit in certain
exceptions of the General Counsel. Accordingly, the Board adopts
the findings of the Trial Examiner but not his conclusions or
recommendations.
The complaint alleged that Barbara Burr, an employee of the Re-
spondent, was discharged because of her union membership or ac-
tivities. Burr was hired in April 1962 as a temporary recooper l and
'2 weeks later, at the end of her probationary period, she was made a
permanent employee. Respondent had a collective-bargaining agree-
ment with the Union' which contained a union-shop provision. How-
ever, the list of classifications covered by the contract did not mention
recooper. Upon accepting permanent employment, Burr was not
required to and did not join the Union under the contract's .union-
security clause.
In mid-April 1963, Burr telephoned the president of the Union and
expressed interest in joining, and Union President Mossberger agreed
to assume bargaining responsibilities for her. Subsequently Burr filled
in a union application blank and other forms and took them to the
Union's office. On April 29, 1963, Mossberger wrote to the president
of the Respondent,. Philip Milstein, stating that Burr had authorized
the Union to represent her in collective bargaining and that the Union
would like to meet with him for "negotiation of wages, hours, and con-
ditions" for Burr as soon as possible.
On April 30, Respondent's vice president, Murray Hayutin, had a
brief conversation with Burr about the Union's letter. Burr credibly
testified that Hayutin asked about her joining the Union and she
indicated it was prompted by her desire fora wage increase. Burr
further testified that Hayutin said that her classification was not in
the union contract; that he would not neotiate for her; and that, if re-t3
As noted in the Trial Examiner's Decision , recoopering involves unpacking and re-
packing damaged and undamaged goods.
2 Local 17, International Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America.
THE BANKERS - WAREHOUSE COMPANY ' ' 1199
quired to pay her more' money, he would hire a man for her job. On
the following day, May 1, Hayutin informed Burr that as a result of a
conference the evening before with Milstein and Deniston, Respond-
ent's president and superintendent respectively, it had been decided
to terminate her effective at the end of the week because of lack of
work. At the hearing, Deniston admitted on cross-examination that
he had stated that the Respondent would be better off to have a man
in the recoopering job if it had to pay union wages to Burr. While
Deniston reluctantly estimated the date of such statement as occurring
some 30 days prior to Burr's discharge, the Trial Examiner con-
cluded that it more logically occurred in a discussion about a wage
increase for Burr on April 30.
The Respondent contends that it had been planning for some time to
eliminate women from recoopering because they could not be trans-
ferred to the warehouse when extra workers were needed inasmuch as
they could not do the heavy lifting required there 3 It further con-
tends it had been training a man to combine inventory and recooper-
ing work and that such training had ended in late April. The fact
that Burr's announced discharge occurred the day following the
receipt of the union letter was termed "purely coincidental."
The Trial Examiner rejected, as we do, Respondent's contentions
that the Company had planned to replace Burr at this time with a man
who could do recoopering as well as inventorying and that Burr's
work was unsatisfactory. In Hayutin's conversation with Burr on
April 30, Hayutin did not inform Burr that she was to be replaced but
merely informed her he would not bargain with the Union for her.
The claim that Burr's work was unsatisfactory appears an after-
thought because, as the Trial Examiner noted, she had never been
reprimanded or warned about, her work during her year of employ-
ment. The Trial Examiner further found that there was no evidence
other than receipt of the union's letter requesting bargaining that
could account for Burr's abrupt discharge and concluded that Re-
spondent's decision to terminate Burr was made after receipt of the
union letter. Despite his findings, the Trial Examiner concluded that
while Respondent's discharge of Burr might be discrimination be-
cause of. her sex, she was not discriminated against because of her
union membership and activities. We disagree.
It is, of course, not the purpose of the Act to restrict an employer's
choice of employees based solely upon considerations of efficiency,
work performance, or sex. Respondent's action here took place in
the wake of its receipt of the union letter and Hayutin's conversation-
with Burr, a conversation that indicated his displeasure with Burr's
newly acquired union membership and the prospect of bargaining
8 Presumably this was true , however, when Burr was hired a year previously.
744--670--65-vol. 146-77
1200 DECISIONS OF, NADIONAL LABOR RELATIONS BOARD
with the Union in respect' to her wages. Moreover, if Burr was dis-
criminated against solely because of her sex, it is strange that such
discrimination occurred only after she joined the Union and enlisted
its support in behalf of a.wage increase. Even assuming that Burr's
discharge was based in part on the fact'that the Respondent did not
wish to pay higher wages to iti woman, we find that her demand for
higher wages was inextricably interwoven with her union member-
ship and the Union's demands for bargaining on her behalf.4 We
conclude the Employer's conduct here necessarily discouraged Burr's
union membership irrespective of how; amicable a relationship existed
with the Union with respect to other employees.
We are persuaded that Burr's discharge violated the Act because
the timing of the announcement of Burr's discharge occurred the day
following the Union's demand for bargaining on her behalf; the
admission by Deniston that he stated that if they had to pay her
union wages they would get a roan for the job; the fact that she had
.been employed for a year. without any indication that her sex pre-
cluded her from satisfactorily performing her job; and the short
termination notice and the absence of any other credible- reason for
her peremptory discharge. Even assuming that the Respondent's
conduct was caused in part by considerations of Burr's sex, we find
that the motivating or moving cause of her discharge was her attempt
to enlist the support of the Union in securing a wage increase and that
this occurred as a natural result of her union membership. By its
discharge of Burr in these circumstances, we find that the Respondent
violated Section 8(a) (3) and (1) of the Act.5
The Effect of the Unfair Labor Practices Upon Commerce
The activities of the Respondent, noted' previously, occurring in
connection with its operations as set forth in the Trial Examiner's
Decision, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and tend to lead" to
labor disputes burdening and obstructing commerce and the free flow
of commerce.
THE REMEDY
Having found that the Respondent discriminatorily discharged
Barbara Burr, we shall order the Respondent to offer her immediate
and full reinstatement to her former or substantially equivalent posi-
tion, and make her whole for any loss of earnings she may have suf-
fered because of the discrimination against her by payment to her
4 As there is no Issue before us of a refusal to bargain within the meaning of Section
8(a) (5), we do not consider, pass on, or adopt the Trial Examiner's remarks about the
appropriateness of the unit or whether the Respondent. In fact, was not required to bargain
with respect to Burr.
5 Edmund A. Gray Co., Inc., 142 NLRB 590.
THE BANKERS WAREHOUSE COMPANY 1201
of a sum of money equal to the amount of wages she would have
earned from the date of discrimination to the date of Respondent's
offer of reinstatement, less net earnings, if any, during said period,
with interest thereon at 6 percent per annum in accordance with the
Board's usual practice.'
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. The Bankers Warehouse Company is engaged in commerce within.
the meaning of Section 2(6) and (7) of-the Act.
2. Local 17, International Brotherhood of Teamsters,. Chauffeurs,
Warehousemen and Helpers of America, is a labor organization within.
the meaning of Section 2(5) of the Act.
3. By discharging Barbara Burr, because of her membership ,or
activities in the Union, the Respondent has violated Section 8(a) (3).
and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices,
affecting commerce within the meaning of Section 2(6) and .(7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the Respond-'
ent, The Bankers Warehouse Company, its officers, agents, successors,
and assigns, shall: .
1. Cease and desist from :
(a) Discouraging membership of any of its employees in Local
17, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or in any other labor organization, by
discharging employees or in any other manner discriminating against
employees 'in regard to hire, tenure of employment, or any term or
condition of employment, except as authorized in Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
(b) In any other manner interfering with, restraining,"or coercing
its employees in the exercise of their rights guaranteed to ,them in
Section 7 of the Act, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of continued employment, as authorized by Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959. '
e F. TV. Woolworth Company, 90 NLRB 289; 18i8 Plumbing & Heating Co ., 138 NLRB 716.
1202 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Barbara Burr immediate and full reinstatement to her
former or substantially equivalent position without prejudice to her
seniority or other rights or privileges, and make her whole for any loss
of earnings she may have suffered, in the manner prescribed in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the National
Labor Relations Board or its agents, for examination and copying,
all payroll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Order.
(c) Post at its plant in Denver, Colorado, copies of the attached
notice marked "Appendix." 7 Copies of said notice, to be furnished by
the Regional Director for the Twenty-seventh Region, shall, after be-
ing duly signed by Respondent's representative, be posted by the Re-
spondent immediately upon receipt thereof, and be maintained by it
for.60 days thereafter, in conspicuous places, including all places
where notices to its:.employees are customarily posted. Reasonable
steps'shall be taken'by the Company to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-seventh Region,
in writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
7In the event that the Board 's Order is enforced by a decree of a United States Court of
Appeals, the words "A Decree of the United States Court of Appeals , Enforcing an Order"
shall be substituted for the words "A Decision and Order."
APPENDIX
No'rIcE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discriminate against Barbara Jean Burr in regard
to her hire and tenure of employment, because of her membership
in or activities on behalf of International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Local
Union No. 17, or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist the above Union
or any.other labor organization, .to bargain collectively through
representatives of their own choosing, to engage in concerted
THE BANKERS WAREHOUSE COMPANY 1203
activities for the purposes of collective bargaining or mutual aid
or protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)'(3) of the Act, as
amended.
WE WILL offer to Barbara Jean Burr immediate and full rein-
statement to her former or substantially equivalent position, with-
out prejudice to her seniority or other rights and privileges, and
make her whole for any loss of pay suffered as a result of the
discrimination against her.
All our employees are free to become, remain, or refrain from
becoming or remaining members of International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 17, or of any other labor organization, except
to the extent that this right may be affected by an agreement re-
quiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a) (3) of the Act, as
amended.
THE BANKERS WAREHOUSE COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ' ( Title)
NoTE.-We will notify the above-named employee if she is presently
serving in the Armed Forces of the United States of her right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be. altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, 609 Railway Exchange Building, 17th and Champa Street,
Denver, Colorado, Telephone No. 534-4151, Extension 513, if they
have any question concerning this notice or compliance with its
provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on May 7, 1963 , and an amended charge filed on June 25,
1963, by International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 17, herein called the Union, against The
Bankers Warehouse Company, herein called the Respondent , the General Counsel
of the National Labor Relations Board , herein respectively called General Counsel
and Board , caused to be issued on June 28 , 1963, a complaint alleging that the
Respondent had engaged in and was engaging in certain unfair labor practices affect-
ing commerce within the meaning of Section 8 (a)(1) and ( 3) and Section 2(6)
and (7 ) of the Act.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The -complaint alleges,, in substance, that on May 3, 1963, Respondent discharged
its employee Barbara Jean Burr because of Burr's activities on behalf of, or member-
ship in, the Union, or both. On July 5, 1963, the Respondent filed an answer in
which it denied. the allegations of unfair labor practices.
.1 Pursuant to notice, a hearing was held before-Trial Examiner James R. Hemingway
on August 27, 1963. The General Counsel and the Respondent were both rep-
resented by counsel. At the opening of the-hearing, the Respondent moved to strike
the original charge from the record. This motion was denied.' At the close of
the hearing the parties waived oral argument but requested a date for the filing of
briefs. A date was set and was, upon request of counsel for the Respondent, later
extended to October 7, 1963. Briefs have been received and have been considered.
- From my observation of the witnesses and upon the entire record in the case, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the answer admits, and I find that: the Respondent is, and
at all times material herein has been, a corporation duly organized under, and
existing by virtue of, the laws of the State of Colorado; at all times material herein
Respondent has maintained its principal office and place of business in Denver,
Colorado; at all times material herein Respondent has continuously engaged in the
warehousing of various commodities for manufacturing and distributing companies;
the Respondent, in the course and conduct of its business, located in Denver,
Colorado, performs services for, and annually derives income in excess of $50,000,
received directly from, customers located outside the State of Colorado; and Re-
spondent now is, and has been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of the
Respondent.
ITT. THE UNFAIR LABOR PRACTICES
A. Discrimination; interference, restraint , and coercion
1. Background
Respondent operates four warehouses. Warehouses No. 1 and No. 2 are adjacent
to one another. In warehouse No. 1, an.enclosed area has been set aside for use
in recoopering operations. The recoopering area is separated from the rest of the
warehouse and can be locked. Recoopering involves the removal of merchandise
from containers for the purpose of dealing therewith in a special way and then
returning it to the containers in accordance with the directions of the customer.
Most of the recoopering involves damaged merchandise, but it also involves un-
damaged merchandise with which the customer wishes to make changes, such as
relabeling of bottles or the addition of sale stickers. Before April 1962 the Respond-
ent had male warehousemen do the recoopering. Sometimes temporary help was
brought in to assist the men who were doing recoopering.
In March '1962 the Respondent entered into a union-shop contract with the
Union for a 3-year term from January 1962 to January 1965. Article I, on recogni-
tion, defined the bargaining unit as "All classifications of employees enumerated in
Appendix `A', but excluding all other employees, including clerical employees, office
employees, janitors, watchmen, solicitors, salesmen, foremen, dispatchers, and all
supervisory employees with authority to hire, promote, discharge, or discipline."
There was no classification of recooperer in appendix A.
In April 1962 the Respondent decided to try out women for recoopering work on
a temporary basis and hired two women for a period of 2 weeks to assist the men
who were then doing recoopering work.. One of these men, Bill Veto, was an
elderly man in his seventies, on social security, who worked on a reduced schedule
'The official reporter garbled the Trial Examiner's explanation of his ruling on page 6
of the transcript. This Is amended in the following respects: In line 3, the word "not"
is deleted. In line 5. after the word "original", insert the word "charge". In line 7,
after the word "Section", delete "B" and insert in lieu thereof "10(b)". In line 8, after
the word "the" and before "limitation", insert "statute of
THE BANKERS WAREHOUSE COMPANY. 1205
and at a reduced rate.of pay under. a special arrangement with the.Union.2 He-was
not a- member'of' the Union.' The other man, one Gutierrez, a>member of the
Union, was after April 1962 used in general warehouse work and as- a. driver.
2. History of Burr's employment. -
Barbara Burr was one of the two women who were hired in April 1962 as temporary
recooperers. Her employment started on April ' 6, and just before her 2 weeks'
temporary employment expired, Arlie Ferdon, the traffic manager, who had inter-
viewed Burr at the time of her employment, told Burr that she would be kept on as a
permanent employee. The other woman, hired at the same time as Burr, was re-
leased. Burr's rate of pay was $1.50 an hour throughout the term of her employment.
For the most part, Burr worked in the enclosed recoopering area in warehouse No. 1,
although. occasionally she and Veto. would be required to take their materials on a
cart to a spot in warehouse No. 2 where damaged cases were situated in a place
where they could not be moved to the recoopering -area. Then -the recoopering
would be done on the spot where the damaged goods were located. Burr never
worked in other than these two warehouses. Warehouse No. 1 was used by Re-
spondent for the merchandise of a number of customers, whereas warehouse No. 2
was used for a single large customer.
Burr was not a member of the Union, -and the Union never required that she join
under its union-shop contract. In November 1962, the union business agent, Hillery
Israel, did broach the subject with Respondent following a grievance meeting about
another subject by asking Philip Milstein, the Respondent's president, "How about
getting the ones in [the] recoopering room signed up with the Union?" Milstein
had replied that recoopering was not involved in warehouse work, that it was separate
from warehouse work. The Union did not again raise the subject, nor did it seek to
bargain for Burr until late in April 1963 after Burr had joined the Union voluntarily.
In January 1963, Burr, in attempting to reach something on a shelf overhead, stood
on a 5-gallon can; the can tipped, and Burr fell, injuring her back. As a consequence,
Burr was absent from work from January 8 to January 21. Following her return
to work, Burr went -to -the Respondent's doctor and other doctors a number of times,
during working hours at first and sometimes later on also.3
Shortly after her return to work on January 21, 1963, Burr asked the Respondent
if it could give her any office work. She did not, however, get any office work at that
,time, but on a few occasions in April 1963, when Burr had no work to do, she
had been directed to the office, where the -office manager, Joan Fortunato, had some
microfilming to be done.4 During the last 2 weeks of April, Burr spent 1 full day
and several half-days in the office. On one occasion, -according to Fortunato,
President Milstein saw Burr in the office and commented to Fortunato that, if
Burr did not have enough recoopering to keep her busy, perhaps the Respondent
should let her go.
In mid-April 1963, Burr telephoned Robert Mossberger, president of the Union,
and expressed interest in joining the Union, asking if the Union accepted women.
In a subsequent meeting between Mossberger and Burr, Mossberger said that the
Union would accept women and explained to Burr that after she had signed an
application for membership and other forms, he would write a letter to the Respond-
ent requesting a meeting to discuss her working conditions and pay. . Mossberger
explained to Burr that -the Union would probably negotiate for her a lower rate
of pay than any in the contract, because she was a woman and because she had been
injured. He said they would try to get her a rate of $2 an hour. He left the forms
for Burr to fill out and to send to the Union. Burr filled in the application blank
and other forms left with her by Mossberger and, on April 23, look them to the
Union's office.
Under date of April 29, 1963, Mossberger wrote to President Milstein, stating that
Burr had authorized the Union to represent her in collective bargaining and that
the Union would like to meet with him and 'negotiate wages, hours, and c6ndi-
2 The Union's contract with Respondent contained a provision permitting employees,
who. "by reason of age, physical handicap or otherwise is unable to earn a fair profit for
his Employer," to continue working at a reduced rate on condition that a written agree-
ment be entered into between the Union, the employee, and the Employer.
2 According to an affidavit of Respondent's vice president, the Respondent felt that
Burr's-injury was a result of her carelessness and denied liability therefor, but it was
overruled [by the Compensation Commission?] and paid injury compensation to Burr.
4 Apparently the' office was behind on its microfilming because the girl who handled it
was absent because of illness.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lions" for Burr as soon as . possible . The Respondent presumably received Moss-
berger's letter the.following day, because on Tuesday, April 30, Respondent's vice
president, Murray . Hayutin, had a brief conversation. with Burr about it. Burr.
testified that Hayutin, with the little booklet containing the union contract in his
hand, asked Burr, "What's this about your joining the Union?" Burr testified that
she replied that she had worked there for more than a year and thought that she
should have a little more money. Burr further testified that Hayutin looked at
the booklet in his hand and said that there was no classification like hers and that
he would not try to negotiate or talk about a wage increase and that she could do
what she wanted to. Burr also quoted Hayutin as' saying that, if he had to pay
more, he would hire a man for the job. Hayutin, in his testimony, denied that
he had talked with Burr "about union activity in any way." His memory at the
hearing did not extend to this conversation. He had, however, in a prehearing
affidavit, made the statement, "I mentioned casually to Mrs. Burr that we had re-
ceived a letter from the union requesting that we negotiate on her behalf," and he
testified that this was probably correct. Hayutin's memory of the incident ap-
peared reluctant. Since he did not anywhere categorically deny Burr's testimony,
and since Burr's testimony appeared to be honest, I credit Burr's -testimony and
find that Hayutin did, in substance, make the statements quoted by Burr.
Under date of April 30, 1963, Hayutin wrote a letter to Mossberger in reply to
Mossberger's letter of April 29, in which Hayutin stated:
we do not interpret recoopering work to be subject to collective bargain-
ing. Barbara Burr was hired and is performing miscellaneous recoopering and
repacking work. She has been instructed to, do none of the work of a ware-
houseman including any material handling labor.
As a matter of fact, we have found that we do not even have enough work
to keep Barbara Burr busy full time in the warehouse and she has been per-
forming miscellaneous office jobs.at regular intervals.
Although this letter was dated April 30, the envelope in which the letter was sent
bears a postmark of 6 p.m., May 2, 1963.
On Wednesday, May 1, Burr telephoned Hayutin from her home and told him
that she would not be in that day because of illness. She testified that this was
because her back was bothering her. In this conversation, Hayutin told Burr, accord-
ing to the latter, that he had talked with Superintendent Ward Deniston and Presi-
dent Milstein the evening before and that Bill Veto was going to do all the recooper-
ing work and that she would not be needed after Friday of that week.
Burr presumably worked the last 2 days of that week, May 2 and 3. She testi-
fied that there was still more work to be done when she was terminated, and I take
this to be a fact, although there was nothing to indicate that the amount of work
was then at emergency proportions, requiring extra help. Following Burr's termi-
nation, Mossberger telephoned the Respondent and spoke with Hayutin about it.
Hayutin told Mossberger that the reason the Respondent terminated Burr's employ-
ment was because of lack of work.
After that week, employee Les Nepple, who was being trained to take inventories,
was assigned to do the recoopering work in warehouse No. 1, also, while Veto did
the recoopering in warehouse No. 2. When Nepple quit his employment in July
1963, the Respondent got another man who had had the same training as Nepple
to do the same work as Nepple had done. Both Nepple and the replacement were
members of the Union.
3. Respondent's' defense
The Respondent's defense is that it had, for some time , been planning to eliminate
women from recoopering work because they could not be transferred to work in
the warehouse when someone extra was needed there , because women could not
lift heavy cases or sacks and needed the assistance of a man anyway and because it
had been training a man to do a combination of inventory and recoopering work and
by the end of April this man was ready to take over . The Respondent asserts that it
was pure coincidence that it decided to terminate Burr about the time when it learned
of her joining the Union.
According to Respondent's evidence , the Respondent had, for some time before
April 30. 1963, been trying to improve its system for taking inventory and had
decided that inventory-taking should be done in warehouse No. I by one man for all
the accounts there rather than by having the man handling a single account take the
inventory , as had been done in the past. Under this new procedure, it was decided,
according to the Respondent 's evidence, that the man who took the inventories should
also do the recoopering work, so as to have a better check on the entire stock. It
THE BANKERS WAREHOUSE COMPANY 1207
is undisputed that the Respondent had hired and was training a man named Les
Nepple for inventory work. The evidence indicates that one who takes inventories
should be acquainted with recoopering, since the goods in that department would
have to be included in a full inventory. It is also established that Nepple worked
-with Burr in the recoopering room on a number of occasions.. Sometimes he would
work there only for a couple of hours a day, but at least once and perhaps oftener
it was for a full day. Prince Banks, a warehouseman who worked in a department
near the one in which Burr had worked, testified that, during April 1963, Nepple had
helped Burr three or four times a week .5 Nepple had progressed with his training
so far as to take his first inventory on April 10, 1963.
The evidence is not sufficiently detailed to permit an inference that Nepple's work
on recoopering in April 1963 caused a shortage of such work for Burr at the times
when she was assigned to work in the office, but before April 1963, Burr had always
had enough recoopering to do so that she had worked exclusively on that. Like-
wise, there is no evidence of Veto's location when Nepple was assisting Burr. Ac-
cording to Burr, any lack of work she had was due to a lack of cartons .6 On the
evidence available, however, I am unable to reach the. conclusion that Burr would
have had to wait for cartons to work on the next order irrespective of whether or
not Nepple had done recoopering work with her. It is conceivable that his assist-
ance made the work on the earlier orders go faster and finish sooner than it other-
wise would have done.
The Respondent adduced evidence that Superintendent Ward Deniston had ex-
pressed dissatisfaction with Burr's work because she would not follow orders. Denis-
ton testified but gave no details about this fault and the Respondent adduced no
evidence to show that Burr had been warned about not following orders. The
Respondent's failure to specify what orders were not followed or to adduce evidence
of reprimand suggests that Burr's fault was venial, that perhaps she lifted cartons
although she was instructed to let a man do the heavy work. Deniston testified that
he preferred to have a man on recoopering because a man could be transferred
from recoopering to warehouse work as needed, whereas a woman could not do
general warehouse work. Vice President Hayutin testified that about a week be-
fore Burr's discharge, Deniston had recommended her release. Deniston, too,
testified that he had made such a recommendation. Hayutin's testimony tended to
be vague with respect to the events close to Burr's termination, and because of this
vagueness as well as other evidence I deduce that Deniston's recommendation was
made on the afternoon of April 30 when there took place the conference that
Hayutin mentioned to Burr in their telephone conversation on May 1. Deniston
admitted, on cross-examination, that he had made a remark that the Respondent
would be better off to have a man in the recoopering job if it had to pay union wages
to Burr. Deniston was not specific as to when he had made this remark but he
separated it from his recommendation for discharge of Burr by estimating that he
had made the remark about being better off with a man if the Respondent had to
pay Burr union wages about 30 days before Burr's termination. The very form
of Deniston's statement , however conditional in form, makes it improbable that
his statement was unrelated to the subject of a raise in pay for Burr, despite Denis-
ton's denial that it was. Both Hayutin and Deniston appeared to me to be in-
tentionally vague about time.
4. Conclusions
As the Respondent's witnesses appeared inclined to avoid a revelation as to
precisely what had taken place following the receipt by Hayutin of the Union's let-
ter requesting negotiations concerning wages, hours, and working conditions for
Burr, the facts can be reconstructed only by inference. In this case, it is not easy
to draw a fine line between inference and speculation. However, I find no evidence
of any occurrence during the week of April 29, 1963, which would have precipitated
Burr's discharge at the end of that week other than receipt of the Union's letter
or the facts disclosed by it or disclosed by Burr herself. By use of the word
"precipitated," I do not mean at this point completely to reject the Respondent's
evidence that it was preparing Nepple eventually to take over the recoopering work
in warehouse No. I along with inventory work. It appears to me , however, that
if the Respondent had terminated Burr solely because of its decision that Nepple
0 Banks was called by the General Counsel as a witness, but gave the testimony herein
related on cross-examination . Banks was unbiased and objective in his testimony, and
his testimony is credited.
6 Cartons had to be requisitioned by the Respondent from the customer . Sometimes the
customer was slow in supplying them.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was ready to take over, the Respondent would have recognized this fact sufficiently
far in advance to give Burr a week's notice rather than 3 days' notice. Even if it had
chosen not to give a week's notice, it would be expected that Hayutin would have
told Burr, at the time that he mentioned having received the Union's letter and when
he told her that he did not intend to bargain with the Union about her wages, that
there was no use doing so because she was to be terminated at the end of that
week. He did not then so inform Burr, however. Another indication that the
Respondent's plans concerning Nepple had not jelled appears from the fact that
when Hayutin told Burr on May I that she would not be needed after that week, he
told her that Veto was going to do all the recoopering. In Burr's testimony (and
she was the only one to testify about what was said in this conversation), no men-
tion was made of Nepple by Hayutin. Furthermore, Hayutin said nothing about
Nepple's taking over when he explained Burr's termination to Mossberger immedi-
ately following Burr's termination. On the state of the evidence, I do not incline
to the view that Burr's termination was merely a culmination of plans for Nepple to
take over her work. Obviously, when it released Burr, the Respondent planned to
have recoopering work done by a man or men, but I am inclined to believe that the
use of Nepple on such work exclusively in warehouse No. 1 and the use of Veto
on such work in warehouse No. 2 resulted from a later determination. Also, if
Respondent's decision to release Burr had been made the week before receipt of the
Union's letter, as Hayutin's testimony suggested, I should not expect that Deniston
would have been so reluctant as he appeared to be to date the making of his state-
ment (about being better off with a man if the Respondent were going to have to pay
union wages to Burr) as on April 30, nor should I have expected Hayutin to have
been so vague in his memorythat he could not have fixed the date of the decision to
terminate Burr more precisely. As pointed out before, the evidence of Deniston's
quoted comment (apparently at the conference on April 30) cannot logically be
divorced from an effort by Burr, through the Union, to get a raise, in view of the
conditional form of his comment. The Respondent learned of Burr's joining the
Union only when, on April 30, 1963, it received the Union's letter, and Burr was
informed by Hayutin early the next morning that she would be terminated at the
end of the week. From the timing of the facts and on the entire record, I conclude
that an inference is warranted, and I find, that the Respondent made its decision
to terminate Burr after having received the Union's letter.
Such a finding is not, however, tantamount to a finding that, by such discharge,
the Respondent was discriminating against Burr because of her membership in or
activity on behalf of the Union, thereby discouraging membership in the Union
in violation of the Act.7 The complaint does not allege, and the General Counsel
does not appear to contend, that Burr was discharged for engaging in concerted
activities, independently of her joining the Union or her alleged union activities.
The allegation in the complaint is that she was discharged because of her "activities
on behalf of and/or membership in the Union." Since the Union's contract defining
the unit did not cover Burr's job and since the Union tacitly admitted that the con-
tract did not require Burr to join the Union as a condition of employment,8 I find
that,the Union's claim of authority to bargain for Burr came about solely because
of her having designated the Union as her individual bargaining representative.
In the absence of an application of the doctrine of accretion, this put Burr in a
bargaining unit by herself. The General Counsel makes no contention that Burr
was in the bargaining unit by accretion or that Burr was in the bargaining unit as
defined in the contract at all. Indeed, only an amendment of the contract by
mutual agreement or appropriate proceedings before the Board could have enlarged
the unit to embrace Burr's recoopering job. The Respondent took the position
that it was not required to bargain with the Union about Burr, and there is no
contention that the Respondent was legally obliged to bargain with the Union about
her.
Since the complaint is limited to the allegation of discrimination because of
Burr's union membership or activity, I shall confine myself to a consideration of
this topic. The only union activity in which Burr engaged, so far as the evidence
shows, was anplying for membership in the Union. authorizing the Union to bargain
'on her behalf, and (if this be considered union activity) asking, through the Union.,
7 The General Counsel, in his brief, states that the "principal issue presented herein is
-whether Respondent was motivated in its discharge of Burr by her union activities or
!whether she was discharged for'cause."
8It may be observed that, although the original charge included an allegation of refusal
to bargain,- that allegation was omitted from'the amended 'charge and from the complaint
based on the amended charge. .
THE BANKERS WAREHOUSE COMPANY 1209
for bargaining on the terms of an individual contract for herself. It is a question
of fact, then, as to whether or not the Respondent's motive in terminating Burr
was for such activity; and it is a question of law as to whether or not, if Respondent
did discharge her for any such reason, Respondent violated Section 8(a) (1) or
(3) of the Act.
I find no reason to infer that Burr's act of joining the Union, alone ,'would have
caused Respondent to take immediate action to discharge Burr if she had not been
seeking a wage increase. The Respondent points to the fact that membership of
all other warehouse employees (pursuant to the Union's union-shop contract) is
evidence of a lack of desire or motive on Respondent's part to discourage union
membership. Although I would not consider such fact, in isolation , to be proof of
lack of motive, I note that there is a total absence of evidence of union animus
and that the Respondent and the Union apparently were enjoying amicable rela-
tions. It may be observed also that, following Burr's termination, her work was
done by union members already in Respondent's employ .9 This suggests that the
Respondent did not wish to engage in any further dispute with the Union about
the question of the inclusion of recoopering in the contract regardless of its con-
viction that it was not required to bargain about wages, hours, and conditions of
employment for one not in the unit. With this attitude, it would be natural to
decide to revert to the system used before Burr's hire-that of having warehousemen
do recoopering work.
It is the General Counsel's position that the precipitate action in deciding to dis-
charge Burr upon receipt of the Union's letter negates any other reason for Burr's
termination than the Union's letter revealing.her membership. I am not persuaded
that this is true, because her membership in the Union was not .the only information
transmitted before Burr was given notice of termination: The Union's letter not
only reports Burr's membership but requested bargaining. From this, the Respond-
ent might readily infer that the main object of bargaining was for a raise in pay for
Burr. But if there had been any doubt in Hayutin's mind, Burr, herself, removed
that doubt by informing Hayutin that she had joined the Union thinking that she
could thereby get a raise in pay. Even though the Respondent's decision to dis-
charge Burr was made as a sequel, this does not necessarily disprove a possible
plan, perhaps as yet nebulous, eventually to revert to recoopering by warehouse-
men and to terminate Burr. Although I do not weigh it heavily, I do not com-
pletely discredit the evidence that. Respondent was less satisfied with Burr's work
toward the end of her employment than at the beginning. The evidence is not
clear enough -to enable me to determine the extent to which Burr's injury to her back
or even her possible failure to follow instructions might have contributed to the
Respondent's diminished satisfaction with her services. Rejecting the evidence
that the Respondent planned as early as April 30, 1963, to have Nepple replace
Burr in recoopering,- I find that the only alternative motive on Respondent's part
for Burr's termination was its conviction that a person doing only recoopering work
was not worth more than $1.50 an hour; that, if it paid anyone more for that work
that person would have to be able to do other warehouse work as well; and that,
since Burr was pressing for a raise which Respondent did not wish,to give, it would
terminate her services and-use a man to do recoopering'in conjunction with other
work. If this be discrimination; it is discrimination based on sex and not on union
membership or activity. On all the evidence, I conclude that the Respondent was
not motivated by a desire to discourage union membership in discharging Burr.
Furthermore, I find that the Respondent's purpose was not to discourage union
activity, for I have found that Burr's request, through the Union, was not union
activity on the facts of this case.
The, General Counsel has cited Board. decisions to -support his position. - I have
examined the cases cited and find that they are distinguishable. In Edmund• A.
Gray Co., Inc., 142 NLRB 590, the women. employees involved were in- the bar-
gaining unit and the union was bargaining for them as well- as all other employees
in the unit when, without notice to the union, the Respondent terminated their
employment. The Board found that-the employer-had discharged those women
in order to avoid collective bargaining with the union over the union's demand for
equal wages for both men and women. But.in that case the employer was legally
bound to bargain with the union about them. Here the, Respondent was not
bound to do so. There; clearly the women employees were, through their union;
engaged in collective bargaining. Here, bargaining for Burr was-not collective.
9 There was some evidence that Veto•had - been assisted by two new men, but' the evi-
dence does not show that they were other than temporary employees, and they were not
hired until many weeks after Burr's termination.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the case of Marietta Paint and Color Company, 136 NLRB 1530, a case more
nearly like the one ' under consideration, a single man was involved. The Trial
Examiner there had found that that man was an independent contractor and not in
the bargaining unit. The Board, in reversing the Trial Examiner, found that the
man was not an independent contractor, that he was an employee, and that,
although the union there had not bargained nor sought to bargain for him or his
position before he joined the union, he was nevertheless in the bargaining unit and
that the union therefore had a right to bargain on his behalf. In that case, as
here, the job of the single employee was not listed in the various classifications for
which rates had been negotiated. However, the unit in that case had been defined
as including "All production, maintenance . . employees ...." and the man
involved was a maintenance mechanic who would normally come under the classi-
fication of maintenance employees. The definition in the case at hand was
not so inclusive. Here, the contract between Respondent and the Union defined
the unit only by job classifications none of which was Burr's. There was no all-
inclusive language such as "all warehousemen and helpers." This difference, though
seemingly small, supplies the important difference between this case and the cases
cited by the General Counsel. I have examined innumerable decisions of the
Board in cases where an employee was terminated for economic reasons at about
the time of joining a union or engaging in concerted activity. It will serve no
purpose to cite such cases here since I find that they are all distinguishable. In
many of such decisions the employer was induced by his opposition to the purposes
of the Act to terminate employees on alleged economic grounds. That opposition
is frequently expressed by a refusal to bargain collectively where obliged to do so
under the Act.1e I cannot here find that the Respondent was so induced inasmuch as
it had bargained with the Union collectively and was not obliged to bargain with
the Union as the representative of an individual employee. In some of the cases
decided by the Board the employer was punishing an employee for joining a union
or for engaging in concerted activities.I" I have found that Burr was not being
punished for joining the Union.I2 If Burr had been discharged for asking for a
raise in pay for herself, absent a union, no violation of the Act would appear to be
committed. It would be too farfetched a theory to say that Burr was engaging
in concerted activities (not alleged in the complaint) because she enlisted the aid
of a representative who represented other employees collectively in order to press
for an individual wage increase.
On all the evidence, I find that the Respondent did not discriminate against Burr
in violation of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent has not discouraged union membership by discrimination
in regard to the hire or tenure of employment of Barbara Burr in violation of
Section , 8(a) (3) of the Act.
4. The Respondent has not interfered with, restrained , or coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act in violation of Sec-
tion 8 (a)( I) of the Act..
RECOMMENDED ORDER
I recommend that the Board issue an order dismissing the complaint in its entirety.
• 10 Adkins Transfer Company, 109 NLRB 956 , enforcement denied 226 F . 2d 324 ( C.A. 6) ;
The if. C. Mahon Company, 118 NLRB 1537 , enforcement denied 269 F. 2d 44 (C.A. 6) ;
Kingsford Motor Car Co., 135 NLRB 711 , enfd . as modified 313 F. 2d 826 (C.A. 6) ; Town
d Country Manufacturing Company, Inc., 136 NLRB 1022, enfd . 316 F. 2d 846 ( C.A. 5).
And see Adams Dairy, Inc., 137 NLRB 815, enforcement denied 322 F. 2d 553 ( C.A. 8).
n See such cases as Bowman. Transportation , Inc., 134 NLRB 1419 ; Bunney Bros.
Construction Company, 139 NLRB 1516 ; Ross G ear and Tool Company, 63 NLRB 1012;
The Laredo Daily Times , 64 NLRB 1191.
12 Cf: Tee-Pak, Inc., 123 NLRB 458, where the employer, in terminating employees, was
not demonstrating an opposition to the purposes of the Act, although he was refusing to
yield to a union 's demand for inclusion of the work assigned under the contract at con-
tract rates and laid off two employees because the union would not consent to their work-
ing for less, and the Board found no unfair labor practice.